JUDGMENT : Bishop Hodges Higher Secondary School, Mavelikkara, is an aided school managed by the Corporate Manager, CMS schools, and is governed by the provisions of the Kerala Education Act, 1959 and the Rules framed there under. These writ petitions have been filed by two claimants vying for the post of HSST (Zoology) under the 5th respondent management. 2. A thumbnail sketch of the facts are as under: (a) On 1.6.2018, a vacancy to the post of HSST (Zoology) occurred in the school. Smt. Susan George, the petitioner in W.P.(C) No.2548 of 2021, was working as HSA (Natural Science) in B.I.G.H.S, Pallom, an aided school under the management of the Corporate Manager. She asserts that she is fully eligible to be appointed as HSST (Zoology) as per the provisions of Chapter XXXII of the KER as she is the senior-most HSA qualified to be appointed as HSST (Zoology) in the school. (b) However, the Manager, published a public notice calling for appointments after constituting a selection committee that included a Government nominee and Smt. Tigi Christy Thomas, the petitioner in W.P(C) No.7009 of 2021 was selected. In the HSST (Jr.) post, which occurred due to the promotion of Smt. Elizabeth Mathew, Smt. Stephy Stephen, the 7th respondent in W.P.(C) No.2548 of 2021 was appointed. (c) Smt. Susan George, on coming to know that Smt. Tigi and Smt. Stephy had been appointed and the proposal for approval had been forwarded to the Regional Deputy Director (RDD) submitted a representation contending that she was entitled to be appointed to the post ‘by transfer’. (d) Pursuant to the directions issued by this Court in W.P.(C) No.17533 of 2019 the RDD, Chengannur, considered the matter and by order dated 20.9.2019 (Ext.P4 in W.P.(C) No.2548 of 2021) took the view that Smt. Susan George is liable to be appointed under the by-transfer category and the Manager has illegally denied her right. The same view was taken by the RDD, HSE, Kottayam while issuing Ext.P4(a) order produced in W.P.(C) No.2548 of 2021. Contending that the Manager was delaying the implementation of the orders passed by the RDD, Smt. Susan George submitted a representation before the Director General of Higher Secondary Education (DGE) and by Ext.P5 order dated 25.11.2019, produced in W.P.(C) No.2548 of 2021, the DGE issued directions to the Manager to implement the same. Being aggrieved, the Manager preferred a revision petition before the Government. Being aggrieved, the Manager preferred a revision petition before the Government. The Government after considering the entire aspects issued G.O.No.3352/2020/Gen.ED. dated 18.12.2020, finding that the 5th respondent has not maintained a proper seniority list of teachers under the Educational Agency and that Smt.Susan George is the seniormost HSA. Directions were issued to the lower authorities to prepare the seniority list of teachers under the 5th respondent and to take a decision on the by-transfer appointment of Smt.Susan George as HSST (Zoology). 3. It is in the above backdrop that these writ petitions have been preferred. 4. Smt.Susan George has approached this Court and has filed W.P.(C) No.2548 of 2021 seeking implementation of directions issued by the Government. 5. Smt. Tigi Christy Thomas has preferred W.P.(C) No.7009 of 2021 challenging Ext.P8 order issued by the RDD and Ext.P10 order issued by the Government to the extent of issuing directions to appoint Smt. Susan George to the post of HSST (Zoology) and also for a declaration that the 6th respondent is estopped from raising the claim for appointment as she has participated in the selection process. 6. As common issues are involved, both the writ petitions are taken up and disposed of by a common judgment. Description of parties and exhibits shall be as detailed in W.P.(C) No.2548 of 2021 unless otherwise stated. 7. In the counter affidavit filed by the Manager, it is stated that Smt. Susan George is the senior-most fully qualified HSA under the management for the post of HSST (Zoology) for by transfer appointment and the vacancy which arose on 06.06.2019 is the vacancy for by transfer appointment as ordered by the Government. It is also stated that in tune with the order issued by the Government, Smt. Susan George has been granted by transfer appointment as per order dated 19.03.2021 and Smt. Tigi Christy Thomas was shifted and adjusted as HSST(Jr) from 06.06.2019 against the vacancy of HSST(Jr) post in Backer Memorial HSS, Kottayam. 8. Sri. Jacob P Alex, the learned counsel appearing for the petitioner in W.P.(C) No.2548 of 2021 submitted that the issue raised in this writ petition is covered by the judgment of the Apex Court in Girija V K v. Reshma Parayil and others [ (2019) 2 SCC 347 ]. 8. Sri. Jacob P Alex, the learned counsel appearing for the petitioner in W.P.(C) No.2548 of 2021 submitted that the issue raised in this writ petition is covered by the judgment of the Apex Court in Girija V K v. Reshma Parayil and others [ (2019) 2 SCC 347 ]. In the said judgment, the question before the Apex Court was whether the post of Higher Secondary School Teacher was required to be filled up by direct recruitment taking the cadre strength of the Higher Secondary School Teacher or the same was required to be filled up by transfer. The incidental question was whether for filling the post of HSST, Rule 5 of KSS Rules were to be resorted to. It was held that in terms of Rule 4(2) of Chapter XXXII of the KER, every vacancy of HSST was first required to be filled up in terms of the provisions of the Rules and for apportioning vacancies, the cadre strength was immaterial. It was further held that recruitment under Rule 4(2) cannot be said to be the normal method of recruitment to any service as contemplated by Rule 5 of the KSS Rules and therefore, the KSS Rules cannot be held to be applicable for making recruitment under Rule 4(2) of the 1959 Rules. The learned counsel would also refer to the judgment of the Apex Court in R.K. Sabharwal and Others v. State of Punjab and others [ (1995) 2 SCC 745 ] to highlight the distinction between posts and vacancy and according to the learned counsel, the provisions of Rule 4(2) of the Rules are to be understood in the light of the distinction pointed out by their Lordships in the judgment. According to the learned counsel, the order passed by the DGE clearly conforms to the law laid down by the Apex Court and any delay in implementation cannot be countenanced. 9. Dr. K.P. Pradeep, the learned counsel appearing for the petitioner in W.P.(C) No.7009 of 2021, submitted that Smt. Susan George had participated in the selection process notified as per the provisions of the Act and Rules. She has also not challenged the selection notification. According to the learned counsel, unsuccessful candidates cannot mount a challenge against the selection process. 9. Dr. K.P. Pradeep, the learned counsel appearing for the petitioner in W.P.(C) No.7009 of 2021, submitted that Smt. Susan George had participated in the selection process notified as per the provisions of the Act and Rules. She has also not challenged the selection notification. According to the learned counsel, unsuccessful candidates cannot mount a challenge against the selection process. The learned counsel has relied on the judgment rendered by the Apex Court in Rajesh Kumar Gupta and Others v. State of UP and Others [ 2005 (5) SCC 172 ] to hammer home his contention. According to the learned counsel, the 4th respondent while issuing Ext.P8 order has made it clear that the vacancy of HSST (Zoology) in BHHSS, Mavelikkara, is the 83rd vacancy of HSST and as per the Rules, the post of HSST is to be filled up by adopting the 1:3 ratio between ‘by-transfer’ and ‘direct recruitment.’ According to the learned counsel, as the vacancy which has arisen is the 83rd, the same is not available for direct transfer. 10. I have considered the submissions advanced and have perused the records. 11. Ext.R5(b) produced in W.P.(C) No.7009 of 2021 is the seniority list of teachers under the management who are qualified for the post of HSST Zoology. It appears from Ext.R5(b) that Smt. Susan George is the senior-most HSA, who is qualified for a transfer appointment. 12. Chapter XXXII Rule 4 deals with the appointment of Higher Secondary School Teacher and Higher Secondary School Teacher(Jr). Sl.No. Category Method of Appointment 1. *** *** 2. Higher Secondary School Teacher (1) By transfer from Junior Lecturer in the subject concerned under the management/Higher Secondary School Teacher (Junior) (2) In the absence of qualified hands under clause (1) above, the vacancies shall be apportioned in the ratio 1 : 3 between appointment by transfer and direct appointment as detailed below: (i) (a) By transfer from High School Assistants, who possess the requisite qualifications, under the Educational Agency. (b) In the absence of qualified persons under (a) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants who possess the requisite qualification in the subject concerned, under the Educational Agency. (ii) By direct appointment Note : (i) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under Item 2(i) above such vacancies shall also be allotted for direct appointment. (ii) By direct appointment Note : (i) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under Item 2(i) above such vacancies shall also be allotted for direct appointment. (ii) Appointments under Item (I) above shall be made from select lists of qualified persons prepared on the basis of seniority and merit. 3. Higher Secondary School Teacher (Junior) 1. (i) By transfer from qualified High School Assistants in the subject concerned under the Educational Agency. (ii) In the absence of qualified hands under Item (i) above, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subject concerned under the Educational Agency. 2. By direct appointment Note : (i) 25% of the total posts shall be filled up by the method specified in Item (I) above on seniority-cum-suitability basis and 75% of such post shall be filled up by direct appointment. (ii) When qualified persons are not available to fill up the vacancies set apart for appointment by transfer under Item (I) above, such vacancies also shall be allotted for direct appointment. 13. Interpreting Rule 4(2) and (3) and dealing with an identical issue, the Apex Court had occasion to declare as follows in para 14 to 16 in Reshma Parayil (supra). 14. We may now first look into the statutory scheme as delineated by Rule 4 of the Kerala Education Rules. The first issue is as to whether for filling up the post of Higher Secondary School Teacher, the vacancy has to be allocated as per the cadre strength. A perusal of Rule 4(2) contemplates that post of Higher Secondary School Teacher is to be filled up first “by transfer from Junior Lecturer in the subject concerned under the management/Higher Secondary School Teacher (Junior)”. Thus, every vacancy of Higher Secondary School Teacher has to be filled up first by the transfer of Higher Secondary School Teacher (Junior) in the subject concerned. There is a purpose and object for providing a particular scheme for filling up the post of Higher Secondary School Teacher. Higher Secondary School Teacher (Junior) is also lecturer in subject concerned and the statute required that whenever post in Higher Secondary School Teacher arises, the same shall be first offered to the Junior Lecturer in the subject. Above statutory scheme serves the interests of the school, students and the teachers already serving in the institution. Higher Secondary School Teacher (Junior) is also lecturer in subject concerned and the statute required that whenever post in Higher Secondary School Teacher arises, the same shall be first offered to the Junior Lecturer in the subject. Above statutory scheme serves the interests of the school, students and the teachers already serving in the institution. A Junior Lecturer working in the same subject is first choice to fill up the post, which obviates the management to take any other steps for recruitment. The second method of recruitment under Rule 4(2) begins with the words “in the absence of qualified hands under clause (1) above”. Thus, recruitment under clause (2) shall be resorted to only when no qualified hands under clause (1) i.e. Junior Lecturer in the subject concerned is available. Further, the second phrase of Rule 4(2) begins with the words “the vacancies shall be apportioned in the ratio 1 : 3 between appointment by transfer and direct recruitment”. (emphasis supplied) The clear intendment is that vacancy arising in Higher Secondary School Teacher has to be apportioned in ratio of 1 : 3. There is no concept of looking to the cadre of the post of Higher Secondary School Teacher while apportioning the vacancy under Rule 4(2), the cadre strength is not to be looked into in view of the method of recruitment provided under Rule 4(2) i.e. of vacancies of Higher Secondary School Teacher is filled up first by transfer of Junior Lecturer. 15. A plain reading of the above statutory provision clearly indicates that for apportioning the vacancy, the cadre strength of the Higher Secondary School Teacher is not to be looked into to find out as to which vacancy will go to transfer or direct recruitment. Now coming to the facts of the present case, in the year 2012-2013, two new posts were created in Higher Secondary School Teacher i.e. Commerce and Economics, both were new vacancies and no Junior Lecturers i.e. Higher Secondary School Teacher (Junior) qualified in the subject being available, Rule 4(2) has to be resorted to. The ratio mentioned is 1 : 3, which means that first vacancy is to be filled up by transfer. Resorting to cadre strength, thus, was not contemplated by plain reading of Rule 4(2). We, thus, do not find any substance in the submission of the counsel for the appellant. 16. The ratio mentioned is 1 : 3, which means that first vacancy is to be filled up by transfer. Resorting to cadre strength, thus, was not contemplated by plain reading of Rule 4(2). We, thus, do not find any substance in the submission of the counsel for the appellant. 16. Above interpretation of Rule 4(2) is reinforced by looking to Rule 4(3), which deals with recruitment of Higher Secondary School Teacher (Junior). Higher Secondary School Teacher (Junior) is also to be filled up by transfer from qualified High School Assistant in the subjects concerned. In the absence of qualified hands, by transfer from qualified Upper Primary School Assistants/Lower Primary School Assistants in the subjects concerned under the Educational Agency. For filling up the posts in the subjects concerned, the direct recruitment is also provided as one mode of recruitment. Note 1, which is very relevant, provides “25% of the total posts shall be filled up by the method specified in Item (I) above on seniority-cum-suitability basis and 75% of such post shall be filled up by direct appointment”. Here, Note 1, uses two expressions “total posts” and “such posts”. Thus, computation of 25% and 75% is to be based on that total posts of Higher Secondary School Teacher (Junior). The language used in Note 1 when read in contradiction to Rule 4(2)(ii), the intention is clear that whereas for appointment in Higher Secondary Teacher, the vacancy shall be apportioned, whereas for filling up the post of Higher Secondary School Teacher (Junior), “total posts” are to be apportioned on the basis of cadre strength. 14. The Apex Court, after interpreting the provisions, has made it clear that the post of Higher Secondary School Teacher is to be filled up first by transfer from Junior Lecturer in the subject concerned under the management/Higher Secondary School Teacher (Jr). In the absence of qualified hands under clause(1) above, the vacancy is to be apportioned in the ratio 1:3 between appointment by transfer and direct appointment in the manner mentioned in the Rule. As per Rule 4(2) (2)(i)(a), in the absence of qualified hands under clause (1), the method of appointment is to be by transfer from High School Assistants, who possess the requisite qualifications under the educational agencies. As per Rule 4(2) (2)(i)(a), in the absence of qualified hands under clause (1), the method of appointment is to be by transfer from High School Assistants, who possess the requisite qualifications under the educational agencies. In the absence of qualified hands under (a) above, the appointment has to be by transfer from Upper Primary School Assistant/Lower Primary School Assistants who possess the requisite qualification in the subject concerned under the educational agencies and by direct appointment. Note (i) under Rule 4(2) is of some relevance. It says that when qualified persons are not available to fill up the vacancies set apart for appointment by transfer under item 2(i) above, such vacancies shall also be allotted for direct appointment. Note (ii) provides that appointments under item (i) above shall be made from a select list of qualified persons prepared based on seniority and merit. It was also held in Reshma (supra) that the cadre strength of the Higher Secondary School Teacher is not to be looked into to find out as to which vacancy will go to transfer or direct recruitment. 15. In the case at hand, no Higher Secondary School Teacher (Jr.), who was qualified, was available to fill up the HSST post which had arisen. As the ratio mentioned is 1:3, the first vacancy is to be filled up by transfer. The Apex Court has clearly held that configuring the cadre strength is not contemplated under Rule 4(2). Clarifying further and distinguishing Rule 4(2) and 4(3), the Apex Court held that for appointment as HSST, the vacancy is to be apportioned whereas for filling up of the post of HSST (Jr.), total posts are to be apportioned on the basis of cadre strength. It was also held that the Kerala State and Subordinate Service Rules, 1958 cannot be held to be applicable under Rule 4(2) of Chapter XXXII of the KER. 16. In R.K.Sabharwal (supra), the decision relied on by Sri Jacob P. Alex, the Apex Court had observed that the expressions "posts" and "vacancies", often used in the executive instructions providing for reservations, are rather problematical. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The word "post" means an appointment, job, office or employment. A position to which a person is appointed. "Vacancy" means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre strength is always measured by the number of posts comprising the cadre. It was by taking note of the subtle distinction that the Apex Court in Reshma Parayil (supra), after analyzing threadbare the Notes provided for the appointment of HSST and HSST (Jr) in Rule 4 had observed that the language used in Note 1 in respect of HSST(Jr.) when read in contradistinction to Rule 4(2)(ii), the intention is clear that whereas for appointment in Higher Secondary Teacher, “the vacancy shall be apportioned’’, whereas for filling up the post of Higher Secondary School Teacher (Junior), “total posts” are to be apportioned on the basis of cadre strength. In view of the discussion above, the contention of Dr. K.P.Pradeep that the vacancy which has arisen is the 83rd and the same is not available for appointment by transfer, is based on the total cadre strength of the post and therefore cannot be sustained. 17. From the counter affidavit filed by the Manager, it appears that in tune with the directions issued by the Government, the Manager has prepared the seniority list and from the same, it is evident that Smt. Susan George is the seniormost fully qualified HSA under the management for the post of HSST (Zoology) in the vacancy which arose on 6.6.2019. In that view of the matter, nothing stands in the way of implementation of Ext.P6 order produced in W.P.(C) No.2548 of 2021 by the 2nd respondent. 18. Dr K.P. Pradeep has raised a contention that the petitioner had participated in the selection process and when she failed to secure a selection, being disgruntled, she failed to secure a place in the select list, has come up with this challenge. I am not impressed with the contention very forcefully advanced by the learned counsel. A candidate who participates in a selection process only accepts the procedure prescribed for the selection. But if there is a substantive defect in the selection process affecting her constitutional or statutory rights, nothing would preclude her from challenging the selection process. I am not impressed with the contention very forcefully advanced by the learned counsel. A candidate who participates in a selection process only accepts the procedure prescribed for the selection. But if there is a substantive defect in the selection process affecting her constitutional or statutory rights, nothing would preclude her from challenging the selection process. If any authority for the above proposition is required, reliance can be placed on the judgment rendered by the Apex Court in Meeta Sahai v. State of Bihar, (2019) 20 SCC 17 , wherein it was held as follows in paragraph 16 of the judgment. “16. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgments including Manish Kumar Shahi v. State of Bihar [Manish Kumar Shahi v. State of Bihar, (2010) 12 SCC 576 ], observing as follows: (SCC p. 584, para 16) “16. We also agree with the High Court [Manish Kumar Shahi v. State of Bihar, 2008 SCC OnLine Pat 321 that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The [appellant] invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” [See also: Madan Lal v. State of J&K, (1995) 3 SCC 486 , Marripati Nagaraja v. State of A.P., (2007) 11 SCC 522 , Dhananjay Malik v. State of Uttaranchal, (2008) 4 SCC 171 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515 ] The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance. 17. 17. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process”. 19. Smt. Susan George was merely highlighting the manner in which the statutory rules and the discriminating consequences which may arise if the same is wrongly construed. Under no circumstances can her claim be rejected on the ground that she had participated in the selection process. In view of the discussion above, these writ petitions are disposed of by issuing the following directions : (a) Ext.P4, P4(a) and Ext.P6 in W.P.(C) No. 2548 of 2021 is sustained as legal. (b) Smt. Susan George, being the senior-most qualified HSA, under the management for the post of HSST (Zoology) as per the seniority list prepared pursuant to orders passed by the Government, is held eligible to be appointed as HSST (Zoology) in the schools under the Corporate management. (c) The respondents are directed to implement Ext.P4, P4(a) and Ext.P6 orders issued by the educational authorities and appoint Smt. Susan George to the post of HSST (Zoology) as a by-transfer claimant. (d) In view of the findings above, W.P.(C) No.7009 of 2021 will stand dismissed.